Constitutional Law

August 24, 2014

Everyone understood how much was at stake last year when Senate Democrats eliminated the filibuster for judicial nominations to the federal district courts and courts of appeal. And it didn’t take long for the new “Democratic” majority on the U.S. Court of Appeals for the D.C. Circuit to flex its muscles. In late July, the court reversed course on the balance between the public’s interest in regulation of business practices and the corporate interest in freedom of speech.

In earlier decisions, the court of appeals had struck down graphic warnings for cigarette packs and a requirement that manufacturers disclose whether they produce their goods with minerals mined in the Democratic Republic of Congo. But the en banc court, in rejecting a challenge to country-of-origin disclosure rules for meat products, concluded that the earlier decisions did not allow sufficient leeway for the government to mandate warnings or other informational disclosures to the public.

Perhaps the U.S. Supreme Court will restore the D.C. Circuit’s previous balance, but for now, the tide has turned in favor of consumer protection.

July 29, 2014

One of the real pleasures of blogging is meeting like-minded people through cyberspace. Over the years I've meet a fair number of people who share my interests in cemetery and monument law and occasionally people who are related to some of my subjects -- most often Tulsa riot victims and at other times testators, judges, and orators from the old south. The furthest connection comes with a descendant of one of my favorite historical figures, Francis Daniel Pastorius (though these days I'm the one reaching out to Pastorius descendants!) One of my favorite interactions was with a descendant of two of my subjects from pre-War Alabama, who sent me portraits of them. It was really quite exciting and amazing to be able to see them and because the portraits are held by the family I'd never have been able to see them otherwise.

So ... I was very excited to get an email yesterday from Bob Tate, a collector of rare documents in New York, asking what I thought of one of his documents, which lists a series of toasts for what appear to be a July 4, 1815 celebration -- and maybe they were reused around the time of Andrew Jackson's triumphant journey through Virginia in December 1815 (less sure about this). As I've said before, toasts are a grossly under-utilized source of insight about the ideas of pre-Civil War Americans. Sort of twitter for the antebellum era. In a short compass you can learn a lot.

June 26, 2014

Eric Berger of the University of Nebraska has a new article up on ssrn, "The Rhetoric of Constitutional Absolutism." He's interested in mostly contemporary constitutional opinions that phrase their results in absolutist terms (or what we might think of in terms that suggest that no other result is possible/appropriate). I guess I'm not terribly surprised by this phenomenon. People of action (judges) are likely to think that they're right and to phrase their decisions in terms that justify their decision and make other decisions/paths look implausible or incorrect. What I like about Berger's article is that he goes through a number of the rationales for such appearing certainty. Cribbing now from Berger's abstract:

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. It ultimately argues that the costs outweigh the benefits and proposes a more nuanced, conciliatory constitutional discourse that could acknowledge competing arguments without compromising legal clarity or the rule of law.

As I say, this is mostly about contemporary constitutional law, but the questions Berger raises certainly resonate with our history. I am naturally drawn to see how this might apply to rhetoric about law, property rights, and constitutionalism in the years leading into Civil War. Judges and lawyers in the South spoke and wrote in increasingly hyperbolic terms about slavery and property and the threats to the constitutional order. Southern lawyers, politicians, judges, and academics increasingly told each other that their rights to property in humans was found in the Constitution, in common and Constititutional law, and in political theory -- such beliefs worked their way into formal constitutional law and fed back into popular constitutional thought. Even at moderate places like the University of North Carolina, there was a growing dissatifaction with the Union, a growing belief that the Constitution permitted states to exit, and a growing belief in the Constitution's support for slavery and opposition to abolitionists. Judges -- including one member of the majority in Dred Scott -- extended their arguments off the pages of the U.S. and state reports to college literary societies and to literary journals. The rhetoric was absolutist indeed.

The UDC monument at Appomattox mentions the fight for "principles believed fundamental to government." I've previously speculated -- perhaps incorrectly -- about the meaning of the past tense. That people in the 1920s were looking back on the era of the Civil War and saying that their ancestors had believed in principles like states rights to protect slavery -- but that we now know better. I use the monument to illustrate that we should probably expect people who believe in a doctrine -- no matter how inhumane and wrong other people know it to be -- to believe fully in that doctrine, right up to the time it collapses. Maybe they should know better, but don't bet on it.

June 12, 2014

The 11th Circuit held that a defendant's cell phone tower data (i.e., general location of where the defendant was on a certain day and time) obtained by the police from a cell phone carrier is a search within the meaning the 4th Amendment. This puts them at odds with the 5th and 6th Circuits, opening the possibility of the Supreme Court granting cert sometime soon.

The use of generic cell phone tower data appears very similar to the pen register used in Smith v. Maryland (1979). If the police, as in Smith, can request the phone numbers someone dialed from their phone located inside their home, it is not much of a stretch to ask the same phone company for a person's whereabouts on a certain day and time without a warrant.

Do I have a reasonable expectation of privacy in my day-to-day activities based on where my cell phone is located. I certainly do not have a subjective expectation of privacy, and I certainly do not like knowing that I can be tracked. So the real question is whether society, through five justices, will find that we have a reasonable expectation of privacy.

May 07, 2014

I want to follow up on Eric Muller’s short complaint yesterday about the Town of Greece case. I, too, feel that, for the first time in my life as an U.S. citizen, the doors of government are closing on me because of my religion.

To be fair, the case is not affecting me in a vacuum. The recent attacks and murders in Kansas City where people were killed allegedly because the assailant perceived them to be Jewish has an impact. The recent flyers notifying Jews in Eastern Ukraine that they were required to register with their town merely because they were Jews has an impact. The fact that a family member’s synagogue needs an armed police guard for Saturday services has an impact. The fact that, in my state, being a member of the Anti-Defamation League serves to disqualify you from service on the bench has an impact. But so too does a case that tells me that history is the best judge of the boundaries of the Establishment Clause. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Town of Greece, New York v. Galloway, No. 12–696, slip op. at 8 (Sup. Ct. 2014). Let’s look at this history: the Crusades; Inquisition; hundreds of years of European wars over religion; pogroms throughout Russia and Eastern Europe both before and after World War II; religiously-based conflicts in India, Yugoslavia, Sudan, Israel/Palestine, Armenia, and numerous other countries around the world too numerous to list; and, of course, the Holocaust.

For at least the last 1,000 years, we have been killing each other because of religion. The great hope for the U.S. constitutional democracy was that, by removing government from the religion game, we could put this history behind us. Unfortunately, the Supreme Court has started a process of disenfranchising U.S. citizens based on religion. To attend a government meeting in Greece, New York — and soon in many other towns throughout the U.S. — one must first now accept a call to prayer that will serve to define the majority’s view of proper religious behavior. With no Jewish, Muslim, Buddhist, or Hindu houses of worship in Greece, New York — and in many other towns throughout the U.S. — the prayers will be Christian.

The Court’s majority seem to think that sectarian prayer will improve the process of government. “Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function.” Id. at 14. How does one religion’s prayer trigger “shared ideals?” Why would a minority member feel that a “common end” will be easier to achieve now that someone else’s religion (or for the atheist, religion itself) has been proclaimed as dominant? No, the opposite occurs. The minority is being instructed — “You are only here because we tolerate you, but don’t, not even for a minute, believe that you are a member of the community.”

Apparently, .1%% accuracy isn't sufficient to make out reasonable suspicion in his mind. He'd seemingly require between 5% and 10% accuracy. Even those numbers strike me as an awfully high tolerance for error. In Philadelphia, the city entered into a consent degree regarding stop-and-frisk policies when the existing procedure yielded an 8.4% arrest rate.

I wonder whether Justices Ginsburg, Kagan, and Sotomayor were in agreement about Scalia's proposed level of suspicion he rates sufficient to be "reasonable."

On the other hand, I was cheered to see Scalia being (what seemed to me) realistic about the odds of a random act of reckless driving being related to drunkeness. The broader social anxiety over drunk driving sometimes threatens to obscure reality. Scalia's point reminded me a bit of Justice Clark's dissent in Taylor v. Supreme Court, 24 Cal.3d 890:

The evil motive requisite to punitive damage is simply not shown by driving while intoxicated. Rarely will the defendant have been drinking for the purpose of injuring someone, with knowledge that his drinking will injure the plaintiff, or even with knowledge that his drinking will probably injure someone. While driving intoxicated is dangerous, injury is not probable. Thousands, perhaps hundreds of thousands, of Californians each week reach home without accident despite their driving intoxicated.

April 01, 2014

Last summer the North Carolina legislature passed a law banning the use of Sharia law in North Carolina courts. The statute is an odd one . It does not mention Sharia law, only foreign law. But the law's supporters had Sharia law in mind. The statute -- maybe in some kind of odd resonance with Shelley v. Kraemer -- prohibits the enforcement of contracts that infringe fundamental constitutional rights. This is a way of allowing courts to review private agreements regarding divorce and custody (I'm guessing mostly pre-nuptual agreements) if they refer to Sharia law [or other foreign law] as a way of resolving a dispute. It has been codified in the North Carolina General Statutes in Chapter 1. Its provisions include:

§ 1-87.13. Public policy

In recognition that the United States Constitution and the Constitution of North Carolina constitute the supreme law of this State, the General Assembly hereby declares it to be the public policy of this State to protect its citizens from the application of foreign law that would result in the violation of a fundamental constitutional right of a natural person. The public policies expressed in this section shall apply only to actual or foreseeable violations of a fundamental constitutional right resulting from the application of the foreign law. (2013-416, s. 1.)

§ 1-87.14.Nonapplication of foreign law that would violate fundamental constitutional rights.

A court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of State law shall not apply a foreign law in any legal proceeding involving, or recognize a foreign judgment involving, a claim for absolute divorce, divorce from bed and board, child custody, child support, alimony, or equitable distribution if doing so would iolate a fundamental constitutional right of one or more natural persons who are parties to the proceeding. (2013-416, s. 1.)

(a) In the interpretation or enforcement by a court, administrative agency, arbitrator, mediator, or other entity or person acting under the authority of State law of any contract or other agreement that provides for the choice of a foreign law togovern its interpretation or the resolution of any claim or dispute, the court or administrative agency shall preserve the fundamental constitutional rights of natural persons who are parties to the contract or other agreement.

(b) If enforcement of any provision in a contract or other agreement for the choice of foreign law would result in a violation of a fundamental constitutional right of one or more of the natural persons who are parties to the contract or other agreement,the agreement or contract shall be modified or amended to the extent necessary to preserve the fundamental constitutional rights of the natural persons. (2013-416, s. 1.)

§ 1-87.16. Interpretation of contracts providing for choice of foreign venue or forum.

If the enforcement of any provision in a contract or other agreement providing for a choice of a foreign venue or forum would result in a violation of a fundamentalconstitutional right of one or more of the natural persons who are parties to the contract or other agreement, that provision shall be modified or amended to the extent necessary to preserve the fundamental constitutional rights of the natural persons. (2013-416, s. 1.)

Because I am always looking to incorporate North Carolina legislation and cases into my courses, I think that I probably ought to pay some attention to this statute. I mean, if we're banning the use of Sharia law here in North Carolina, surely it's being used with some frequency, no? And I thought that I'd crowd-source a couple of issues related to this. First, does anyone have any recent North Carolina cases involving Sharia law that I should be teaching? Or North Carolina separation and custody agreements that I could use to illustrate how Sharia law is appearing in North Carolina? Does this come up in some way in wills or trusts? I'm not sure -- I don't know as the statute would protect beneficiaries under a will or trust that in some way uses Sharia law to determine eligibility, though maybe a beneficiary might try something along those lines....

Also, I'm planning on a field trip up to Hillsborough to look for instances where lawyers in the Orange County Superior Court invoked Sharia law. I'll let you know how that goes. But perhaps Orange County isn't the best place to look for this? Do our North Carolina readers have any suggestions on the counties where Sharia law has been invoked most frequently? Perhaps I should think about Alamance, Granveille, or Halifax Counties? Or maybe, because of this statue, I need to look in Virgina counties. Would Lunenburg County be a reasonable place to look for this? Suggestions most appreciated because as I say I want my property -- and especially trusts and estates -- classes to be up-to-date.

The illustration is of the antebellum Orange County Courthouse in Hillsborough.

March 24, 2014

Our friends over at The Conglomerate are hosting an online symposium for the next four days on Sebelius v. Hobby Lobby Stores, Inc., (the United States Supreme Court will hear oral arguments tomorrow). Though nearly all of the 84 amicus briefs submitted in the case explore the religious freedom issues, rather than the corporate law issues, Jayne Barnard, who will be in the courtroom tomorrow, asks: Will corporate law be the tail that wags this dog? Posts by Steve Bainbridge and Nate Oman are already up, and I’m sure that more will follow.

Scholars of the American legal system use the term “popular constitutionalism” with considerable frequency. Ironically, as the usage of the term ballooned in the first decade of the twenty-first century its utility diminished. It came close to being a catchall phrase made to mean anything its user wanted it to mean. Drawing upon data we collected about the usage of the term in law journal articles published since 1980, we charted the temporal changes in legal academic usage of “popular constitutionalism.” We then analyzed some of the consequences of those changes for the traditional understanding of “popular constitutionalism” – paying particular attention to one recent and ongoing effort to reinvigorate the concept of “constitutionalism” (as distinct from “constitutional law”).

That traditional understanding takes as the central animating principle of “popular constitutionalism” “the idea that ordinary citizens,” rather than the courts, “are our most authoritative interpreters of the Constitution.” Under this approach, courts should not have “normative priority in the conversation” about the meaning of the U.S. Constitution. Challenges to interpretive judicial supremacy have always existed, but they enjoyed a mini academic revival in the late 1990s and early 2000s, in no small part because of the “popular constitutionalism” writings of Larry Kramer – in particular his acclaimed 2004 book The People Themselves.

Our data show a dramatic increase, between 2004 and 2006, in the number of law review articles that include substantive discussions of “popular constitutionalism” – an increase we show to be largely attributable to the influence of Kramer’s work. However, the data also evidence a precipitous decline in the percentage of “popular constitutionalism” articles that are actually employing the traditional anti-judicial supremacy understanding of that term (even though the majority of their authors claim that they are discussing ‘popular constitutionalism according to Larry Kramer’).

This is the result of what we term the Kramer versus Kramer problem – Professor Kramer’s failure, in his most popular “popular constitutionalism” writings, to employ a clear and consistent theory. Instead of adhering to a simple, objective definition that takes aim at judicial supremacy, Kramer is too easily distracted by judicial supremacy that takes the form of court decisions with which he ideologically disagrees. This definitional inconsistency has enabled other law professors to pen articles overusing and under-defining “popular constitutionalism” – for a term by any other name is neither as sweet nor as popular.

I am deeply interested in the varieties of public constitutional thought. While I very much respect the extensive work of recent years on ways that public conceptions of the Constitution can work as a check on Congress, I am also interested in ways the public conceptions of the Constitution can constitute us and impel us forward. The best example of this is the conception of Union that was nurtured in so many ways and in so many places -- from the halls of Congress to university lecture halls, pulpits, merchant houses, and even to cemetery dedications -- in the years before Civil War. I wish scholarship were focusing more energy on the positive constitutive parts of the public's admiration for the Constitution.

Had the hospital not relented and removed the ventilator from Marlise Munoz's body, could the Munoz fetus have been brought to term, or at least to viability? And if so, would the resulting child have experienced any temporary or permanent adverse health outcomes? Despite some overly confident commentary on both "sides" of this case suggesting a clear answer one way or the other—i.e., that there was no point in retaining the ventilator because the fetus could never be viable or was doomed to be born with catastrophic abnormalities; or, on the other hand, that but for the removal of the ventilator, the "unborn baby" was clearly on track to being born healthy—the truth is that we simply don't know.

Before getting into the limited available data about fetal outcomes in these relatively rare cases, a bit of brush clearing. The New York Timesjuxtaposed reports about possible abnormalities in the Munoz fetus with the hospital's stipulation about the fetus's non-viability in ways that are likely to confuse, rather than clarify:

Lawyers for Ms. Muñoz’s husband, Erick Muñoz, said they were provided with medical records that showed the fetus was “distinctly abnormal” and suffered from hydrocephalus — an accumulation of fluid in the cavities of the brain — as well as a possible heart problem.

The hospital acknowledged in court documents that the fetus was not viable.

Whether intentionally or not, the nation's newspaper of record implies — wrongly, I think — that the hospital conceded that the fetus would never be viable because of these reported abnormalities. In court, the hospital and Erick Munoz stipulated to a series of facts, including that Marlise was then 22 weeks pregnant and that "[a]t the time of this hearing, the fetus gestating inside Mrs. Munoz is not viable" (emphasis added). The hospital conceded nothing at all about any fetal abnormalities. In short, the Times, and many other commentors, have conflated "non-viability" as a function of gestational age with "non-viability" as a way of characterizing disabilities that are incompatible with life. As I read this stipulation, the hospital was not at all conceding that the fetus would never have been viable, had the ventilator remained in place. Rather, given the constitutional relevance of fetal viability, the hospital was merely conceding the banal scientific fact that the Munoz fetus was, at 22 weeks, not currently viable. There is nothing surprising in the least about the hospital's "concession" about "viability" in the first sense, above: 22-week fetuses are generally not considered viable.

January 25, 2014

UPDATE: Following Friday's court order (discussed below), the hospital today (Sunday, Jan. 26, 2014) removed the ventilator from Marlise Munoz, who has met the criteria for brain death since Nov. 28, 2013.

Two high-profile, rapidly evolving cases involving death by neurological criteria — better known as “brain death” — raise vexing and sometimes novel legal, ethical, and medical questions at the edges of life and death. I'm organizing an online symposium on these cases over at The Bioethics Program Blog, and will be cross-posting my contributions here, beginning with this introduction to the symposium, which brings readers up to date with legal developments through today. Please contact me if you're interested in participating.

The Marlise Munoz Case

On November 26, 2013, Erick Munoz found his wife, Marlise, unconscious on their kitchen floor. She was then 14 weeks pregnant with their second child. Erick resuscitated her and she was transported, alive, to John Peter Smith Hospital, where she was placed on a ventilator to assist her breathing and given other life-sustaining treatment. Not long thereafter, however, Erick says that the hospital told him that Marlise was brain dead.

Although Marlise did not have a written advance directive, according to Erick, both he and Marlise had

worked as paramedics during their marriage, and thus were knowledgeable of and had personally witnessed injuries that resulted in death, including brain death. Erick and Marlise frequently discussed their requests, beliefs and desires with each other, and expressed clearly to each other, family members and friends, their respective desires not to be resuscitated should either of them become brain dead.

Erick requested, with the “full support” of Marlise’s parents, that the ventilator be removed from her body and that he be given possession of it for burial.

The hospital refused. It argued that § 166.049 of the Texas Advance Directives Act (TADA) — which provides that “a person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient” — prohibits it from removing the ventilator. It was not entirely clear whether the hospital believed that Marlise was in fact dead or not. The media was reporting as late as December 24 that the hospital had said that Marlise was in “serious condition,” and the hospital had not released Marlise’s medical records, which Erick said would show a diagnosis of brain death, to him.

More about the Munoz case, the McMath case, and the symposium participants after the jump.

December 20, 2013

I wrote previously about a pending lawsuit to be filed by the ACLU on behalf of 54-year-old Jane Doe, a U.S. citizen who alleges that she was subjected to six hours of increasingly invasive cavity searches by U.S. Customs and Border Protection (CBP) agents and clinicians at the University Medical Center of El Paso as she attempted to return to the U.S. from Mexico via the Cordova Bridge in El Paso, Texas. That lawsuit has now been filed.

The facts alleged in the complaint, which are more or less those previously alleged in the media by Doe through her lawyer, are horrific. Here's the gist (Doe consented to none of the following searches, and none turned up any evidence of contraband):

After she presented herself for inspection at the check point, a CBP agent confiscated her passport and told her she'd been randomly selected for additional screening.

She was then subjected to an over-the-clothes frisk, in which a female agent "ran her finger over Ms. Doe’s genital area" and then, after ordering Doe to squat, "put her finger in the waistband of Ms. Doe’s pants and inserted her finger in the crevice of Ms. Doe’s buttocks."

Doe was then told to stand in line with other people, at which point a drug dog appeared to alert to her.

Doe was taken to a private room, where she was told to drop her pants and crouch. An agent examined her anus with a flashlight. An agent then "parted Ms. Doe’s vulva with her hand, pressed her fingers into Ms. Doe’s vagina and visually examined her genitalia with a flashlight."

Agents sealed the cuffs of Doe’s pants by taping her pants to her legs. They then transported her, handcuffed, to University Medical Center of El Paso, where they handcuffed her to an exam table.

Medical staff wheeled a portable toilet into the room, instructed Doe to take a laxative, and waited for it to take effect. They then observed her produce a bowel movement.

Doctors x-rayed Doe's abdomen.

Agents once again handcuffed Doe to an exam table and watched (along with passersby, since the exam room door was left open) while doctors inserted a speculum into Doe's vagina.

Doctors conducted a digital probe of Doe's vagina while palpating her abdomen.

Doctors conducted a digital anal probe of Doe.

Finally, doctors gave Doe a CT scan.

Having found absolutely nothing incriminating, agents then gave her a choice: Retroactively sign a medical "consent" form and CBP will pick up the medical bill, or refuse to sign and be billed. Doe refused to sign and was later billed over $5,000 for her "treatment." She has not paid.

If true, this fact pattern suggests either that those involved are sadists or—far more likely—that they, like those who searched David Eckert and Timothy Young, are grossly overconfident in the evidentiary signal provided by a K-9 alert.

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

I have no earthly idea what a "bona fide" organization means, but my understanding is that there is wide variation in the standards employed by various training and certification organizations, some of which will "pass" a K-9 with a very high false positive rate. Among other things, K-9 responses have been shown to be significantly influenced by their handlers' beliefs about the presence of contraband. Or, on second thought, maybe not.

But even if we assume a very reliable K-9, and whatever we deem the predictive value of a positive test (i.e., an alert), it will be less than 100%. We should update our confidence in the presence of contraband when subsequent human searches yield nothing. And at some point in a series of false human searches following an initial K-9 alert, our updated belief should be considered insufficient to justify continued searches.

Agents and clinicians in this case — who had no reason to suspect Doe other than the K-9 alert combined with the base rate of drug smugglers among those who enter the U.S. at El Paso — behaved as if the reliability of K-9 alerts were 100%, or something very closely approaching it. Since these are the same principles that govern when it is appropriate to offer, and how to interpret the results of, medical screening tests, it's more than a little ironic than so many doctors seem willing to go to the mat for these K-9s and their handlers.

December 18, 2013

The second in a two-part post on my reaction to the movie "12 Years a Slave." See Part One Here.

How much of slavery’s dreadfulness do we see in our law and history? Is it enough? Americans in the founding era owned slaves. They sexually assulted slaves. They whipped slaves and they watched idly as child slaves were torn away from their mother slaves.

To be sure, our history and jurisprudence do not have to be protracted atonements for the sins of our Fathers. We have come so far since three-fifths. But as we lionize the American Founders, it becomes too easy to argue that slavery was legal and moral in its day, or that the Constitution eventually became a blueprint for equality for blacks.

In 1772, Great Britain’s highest court held that chattel slavery was unlawful in England.Revolutionary heroes must have feared England would take away their freedom not just to buy taxless tea, but to own and sell slaves.

Fast forward to the present. In a mere twenty-five years from its 2003 decision limiting affirmative action in Grutter v. Bollinger, the United States Supreme Court told us that the day of racial equality would be upon us. That is now fifteen years from today. After two and a half centuries of African slavery in America and another century of active, overt injustice, is fifteen more years enough?

In 1978, the Supreme Court mentioned slavery forty-one times in its seminal decision upholding race-conscious admissions inBakke. Just this past year in Fisher v. Univ. of Texas, which again put the practice under strict scrutiny, that number dropped to ten, all in a concurrence penned by Justice Clarence Thomas. And in Shelby County v. Holder, the 2013 case dismantling the Voting Rights Act, the Court referenced slavery but once. That number may dwindle to zero the next time the Court takes on race.

We will find out soon, when it passes judgment on Schuette v. Coalition to Defend Affirmative Action, which examines Michigan’s constitutional ban on race considerations in public university admissions. The Court, which heard oral argument in this case on October 15, will likely hold that such bans are constitutional.

The ablution of slavery from our legal precedents explains our Court’s evolution on issues of race. But have we come far enough to justify turning this bloodstained page?

The level of satisfaction we convey with our history, our Constitution, and the state of race in America may represent its own kind of “unspeakable happiness.” I cannot yet say what we must do now, except, of course, remember. Nevertheless, I feel confident that if we see this movie we might share the same answer to a most pressing question. Is this enough?

December 17, 2013

Thanks for having me in the Faculty Lounge! For my first piece, I wanted to post something I wrote soon after seeing the movie, 12 Years a Slave, which deeply affected me. It's a bit charged, but it captures well how I felt after viewing the film. I hope you enjoy it. I'll post it in two parts; the next installment will come tomorrow.

Unspeakable Happiness

Patsy is her master’s favorite. She picks over five hundred pounds ofcotton a day. Her beauty radiates obstinately through all of her sweat andsuffering. How does her master show his favor? He barely flinches when hiswife throws a whiskey decanter at Patsy’s forehead. He holds Patsy downoutside while he rapes her. When he’s finished, he slaps her hard acrossthe face. One day he finds that Patsy’s run off to a neighboring plantation. Shereturned with a bar of soap, which the mistress had denied her. For thistransgression, he orders Patsy whipped. Finally, he finishes the deedhimself, flaying Patsy’s back until there’s little skin left. All Patsy can do is ask her fellow slave, Solomon, the protagonist of thisstory, to end her life. She asks him to hold her head down in the nearbyriver until she stops struggling, until she gets the only kind of freedomthat seems within reach. Solomon’s story, while replete with similar indignities, ends more gladlythan Patsy’s. He calls his eventual reunion with his family “an unspeakablehappiness.” After all, he lived to write the tale–Twelve Years a Slave–thatdirector Steve McQueen adapted for one of this year’s most acclaimed films.I’ve never seen a film like it. More than any other historical movie I’veviewed, Twelve Years a Slave left me with a sense of being there. Foranyone who cares about American law or history, I would venture to call itrequired viewing. How did so many bystanders stand by and do so little? How could all thesepeople chant of freedom on Saturday, pray to a Christian god on Sunday, andthen on Monday, watch one human being lead another by chains on the cobbledstreets? Our understanding of American history, in particular the Constitution, mustaccount for this. Surely we try. Watching a movie like this one cannot helpbut make me think we have largely failed.

December 02, 2013

This month's Journal of Civil War History will publish an issue devoted to the Emancipation Proclamation. It will feature scholarship put together for the University of Michigan Law School's October 2012 conference and exhibit Proclaiming Emancipation." Cribbing now from Michigan's press release on the issue:

The University of Michigan Law School exhibit commemorating the 150th anniversary of Lincoln's Emancipation Proclamation—and challenging its myths—may have come and gone, but the conversation it inspired will continue when scholarly contributions to that project are published this month in The Journal of the Civil War Era, Vol. 3, No. 4.

"Through the journal, we are able to give what we did on campus a life beyond a moment or a day," said exhibit co-curator Martha S. Jones, associate professor of history and co-director of the Program in Race, Law & History. "The conversation on emancipation is ongoing and the interpretation is ever-changing, reflective of the times."

Edited by William Blair, a research professor at Penn State, the journal features an introduction and article from Jones, along with works by William J. Novak, Michigan Law's Charles F. and Edith J. Clyne Professor of Law; James Oakes, distinguished professor at City University New York; Stephen Sawyer, associate professor at The American University of Paris; Thavolia Glymph, associate professor at Duke University; and Michael Vorenberg, associate professor at Brown University. ...

In all, the journal features works from six of the conference's original eight presenters, including Jones, whose installment, "Emancipation Encounters: The Meaning of Freedom from the Pages of Civil War Sketchbooks," contains the first images ever published by the The Journal of the Civil War Era, and Novak, who co-authored his article, "Emancipation and the Creation of Modern Liberal States in America and France," with Stephen Sawyer from The American University of Paris.

The collection is, in part, a result of the October 2012 "Proclaiming Emancipation" exhibit and conference at Michigan Law. A joint effort by the Program in Race, Law & History, the William L. Clements Library, and The University of Michigan Library, the conference drew scholars from across the country to not only commemorate the 150th anniversary of the proclamation, but also to challenge the record of emancipation, replacing myth with history, Jones said.

November 21, 2013

With Republicans once again blocking presidential appointments, it is understandable that Senate Democrats wanted to eliminate the filibuster for most presidential nominees. However, they have wrongly tampered with an important protection for minority rights with their filibuster "reform."

Of course, the majority ordinarily should prevail in a democracy. However, over a series of many decisions, majority rule can be unfair. As I learned when a member of a legislative minority that had no ability to filibuster, majorities can routinely and persistently shut minorities out of the political process. A 51 percent majority can translate into 100 percent of the power. U.S. Supreme Court Justice Byron White was correct when he wrote that the Constitution is violated when “a particular group has been . . . denied its chance to effectively influence the political process.”

In the past, the Senate’s filibuster rule prevented the majority party from running roughshod over the minority party in Washington. When Republicans have been ascendant, the filibuster protected the interests of Democratic voters; more recently, the filibuster protected the interests of Republican voters.

Undoubtedly, it has been very frustrating for Democrats to watch Republicans stymie President Obama and the Senate majority. Elections have consequences. But the loss of an election should not mean the loss of one’s political voice. It is important that all Americans have a say in the policies that emerge from their government.

November 12, 2013

My colleague Anil Kalhan, as well as Mike Dorf, have had some interesting posts recently following the bizzaro unfolding of the high profile New York stop and frisk litigation. For those who haven't been following it, Judge Shira Scheindlin ruled that New York's stop and frisk policy was improperly using racial profiles. On appeal, a three judge panel on the Second Circuit rapidly issued an order staying the decision and removing Judge Scheindlin from the case (although neither party had requested this remedy or briefed the issue.) Anil's posts are here and here and Mike's is here. The Second Circuit panel was Cabranes, Walker and Parker.

November 11, 2013

Just when you thought David Eckert's ordeal had to be a one-off incident comes
news of (1) a second, similar lawsuit filed against the Hidalgo County Sheriff's Office, and (2) allegations (and an impending lawsuit) from a woman who characterizes as sexual assault the repeated, invasive, ultimately fruitless — and warrantless — search of her person by federal agents from U.S. Customs and Border Protection and doctors at University Medical Center of El Paso, Texas (just across the New Mexico border and not far from Hidalgo County).

Second Lawsuit: Young v. Hidalgo County et al.

The second lawsuit was filed on Friday on behalf of Timothy Young, who, like Eckert,
is represented by the Kennedy Law Firm (which says it has been receiving still other calls from individuals with similar stories). Young’s case interacts in interesting ways
with Eckert’s. Recall that the first of two traffic stops that Eckert has sued over
reportedly took place on September 6, 2012 at around 6:26 pm. Eckert says he
was stopped by an officer (Rodriguez) from the Hidalgo County Sherriff’s Office
for having a cracked windshield and ordered to exit his vehicle because, the
officer said, his hands were shaking. The officer wrote him a warning for the
windshield and told Eckert he was free to go but continued to interrogate him
about what he had been doing and whether he had illegal drugs in his car.
Eckert says that Rodriguez then “seized” the car and called K-9 Officer Green
and K-9 Luis “Leo” Duffmar to the scene, where Leo apparently alerted to
Eckert’s car. The complaint alleges that a search warrant was obtained for
Eckert’s car on September 7, but yielded nothing.

In his complaint,
Young alleges as follows: On October 13, 2012, around 9:42 pm, he had just
pulled into a gas station and begun pumping gas when Officer Peru, of the
Hidalgo County Sherriff’s Office — “with several other police vehicles as back
up” — “initiated a pre-textual traffic stop" against Young, “falsely asserting
that [Young] failed to use a turn signal.” Peru commented that Young looked
nervous and that his hands and legs were shaking. Peru began asking Young about
his activities that day and about tires in the bed of his truck before noticing
that Young’s passenger had an open container.

Peru asked Young to consent to a
search of his vehicle based on the nervousness and open container, and said
that if Young didn’t consent, that he would only be detained longer while
officers obtained a warrant. Young reluctantly consented. Peru noted in the police report
that he suspected that Young was under the influence of narcotics because he
looked “jittery,” licked his lips, and took his hat off and put it back on.
Peru asked Officer Arredondo to call for a K-9 unit, and Green and Leo responded to the scene around 10:30 pm. Leo allegedly alerted to the center of
the driver’s seat, the center console, and the left open door of the vehicle.
Officers conducted “several searches” of the vehicle but turned up nothing.
Around 11 pm, Young withdrew his consent and asked if he could go. Officers
said no and continued to search the vehicle.

In the affidavit, Officer Chavez does allege that Eckert's posture was "erect" and that he "kept his legs together" — but also that: Eckert avoided making eye contact with the officer as he asked him for his license and registration; that Eckert's left hand was shaking as he handed Chavez the documents; that Eckert "stated that he had a problem with [Chavez] searching his person"; that the canine LEO, upon being walked around the outside of the vehicle, "alerted to the driver's side of the vehicle"; that the canine LEO, upon making entry into the cab of the vehicle "a short time later," alerted to the "driver's side seat"; and that the K-9 officer said that he "had dealt with Mr. Eckert on a previous case and stated that Mr. Eckert
was known to insert drugs into his anal cavity and had been caught in
Hidalgo County with drugs in his anal cavity."

UPDATE 11/7/13, 6:15 am: As I implied in the OP (which is now below the fold), and as I stated explicitly in my comment at 7:26 pm last night, "what
primarily struck me as remarkable about the Eckert case is that the
apparent bare (no pun intended) fact of buttock clenching could
constitute probable cause of drug possession." Unfortunately, as I had acknowledged by 10:14 pm, after I had finally gotten around to reading the complaint,

it seems
that, contrary to what I complained about above, and how the media has
portrayed the case, there were, in fact, additional alleged bases for
probable cause beyond the infamous clenched buttocks -- namely, a canine
LEO that alerted to Eckert's car seat and one officer who claimed that
Eckert was known to conceal drugs in his anal cavity.

To be sure, as I also noted in that 10:14 pm comment, "the complaint
alleges that there were problems with the canine LEO known to the
officers and that the officer who made allegations about Eckert's habit
of drug concealment knowingly lied about this." And to be sure, even if there was probable cause for an initial one, or even two or three, searches, that doesn't resolve questions about the appropriateness of either the officers' or the doctors' roles in performing eight invasive-but-fruitless searches over the course of several hours. Still, I was initially moved to blog about this case primarily because of the absurdity of concluding probable cause from buttock-clenching-without-more. I maintain that that would indeed be absurd. Yet even the plaintiff's own complaint presents a much more complex (if not necessarily benign) picture of the alleged basis for the searches.

I wrote the OP entirely on the basis of the two media/blog reports that I linked to in the OP, both of which framed this as the Buttocks Clenching Case, and neither of which included a link to the complaint (both sources have since updated their posts to embed the complaint or include a link to it). A successful Google search for a publicly accessible copy of the complaint, and the resulting link to it, was a last-minute addition to the OP as I rushed out the door. I did glance at the first few pages, where I noticed that the suit covers an earlier traffic stop as well, something that I hadn't seen mentioned in the media reports on which I was relying. That fact alone should have alerted me to the likelihood that there was more to the story—even from the plaintiff's own perspective, as articulated in the complaint—than the media were reporting, and persuaded me to hold off on pressing the publish button.

As he promised in the comments here, Orin Kerr has offered early this morning a typically thoughtful analysis of the case over at VC. Read the whole thing, but for present purposes, this is worth highlighting:

Some media coverage on this case focuses on the line in the affidavit
that the officer had apparently said that Eckert had a stiff posture and
kept his legs together, which some blog posts are reporting as the sole
basis for the warrant. The HuffPost article on the case
offers this inflammatory opening line: “A New Mexico man is alleging
abuse after authorities conducted three enemas, a colonoscopy, an X-ray
and several cavity searches on him simply because he appeared to clench
his buttocks.” As a result, a lot of folks in the blogosphere seems to
be thinking of this as the “clenched buttocks” case (thus the title of
this post, so people know which case I have in mind). But that seems
like at most a very small picture of the alleged cause, and we don’t
even know if that was in the affidavit. The likely basis for the alleged
cause is mostly the drug-sniffing dog’s alert to the driver’s seat that
is the likely basis for probable cause.

Orin ends his post by noting that although "some readers are going to be irate that I am providing a legal analysis
on an emotional case, and others will be annoyed that I haven’t reached a
clear answer," his "comparative advantage is analysis rather than emotion." I actually like to think that that is more often than not my comparative advantage as well, and I regret that it wasn't this time. Mea culpa.